Judge Blocks Publication of Salinger Spinoff Book

By cla on October 2, 2009 10:43 AM

A federal district judge prevented publication of a book promoted as a sequel to J.D. Salinger's The Catcher in the Rye (Catcher), finding it bears too many similarities to the classic novel without providing sufficient critique or parody. Fredrik Colting, a Swedish author writing under the pen name John David California, had sought to publish 60 Years Later: Coming Through the Rye (60 Years)in the United States.

Salinger filed suit against Colting on June 1, 2009 in U.S. District Court for the Southern District of New York, seeking an order to permanently prevent publication of the book. He claimed copyright infringement and unfair competition under the Copyright Act of 1976, 17 U.S.C. section 101, and New York state law. The suit also named Colting’s publishers as defendants.

District Court Judge Deborah A. Batts issued a preliminary injunction July 1 in Salinger v. Colting, 2009 WL 1916354, U.S. Dist. LEXIS 56012 (S.D.N.Y. July 1, 2009), prohibiting Colting from “manufacturing, publishing, distributing, shipping, advertising, promoting, selling or otherwise disseminating any copy of 60 Years.” Batts found that Colting took “well more from Catcher, in both substance and style, than is necessary for the alleged transformative purpose of criticizing Salinger and his attitudes and behavior.”

The injunction was a temporary order that will remain in place until the merits of the lawsuit are decided. In issuing the order, Batts found that Salinger would be likely to succeed on his claims and that he would face irreparable harm if 60 Years was published in the United States. The book has already been published in England, according to Salinger’s complaint. Colting appealed the injunction on July 23 to the 2nd U.S. Circuit Court of Appeals.

In her order, Batts agreed with Salinger that there was enough “similarity between Catcher and 60 Years, as well as between the character Holden Caulfield from Catcher, and the character Mr. C from 60 Years,” to constitute copyright infringement. Catcher was first published in 1951 andtells the story of the 16-year-old Caulfield wandering around New York city after being kicked out of prep school. The main character in 60 Years is “Mr. C,” a 76-year-old man who escapes from a retirement home and undergoes similar experiences to Caulfield’s.

Batts rejected Colting’s argument that the publication of 60 Years should be allowed under the fair use doctrine of the Copyright Act, 17 U.S.C. section 107, because it is a parody of Catcher which criticizes Salinger and the original work. The fair use doctrine gives greater deference to works used for nonprofit educational purposes, and Colting did not contest that 60 Years would be sold for profit. Batts noted that the parody argument was undermined by the original jacket of 60 Years, which called the work “a marvelous sequel to one of our most beloved classics.” “It is simply not credible for Defendant Colting to assert now that his primary purpose was to critique Salinger and his persona, while he and his agents’ previous statements regarding the book discuss no critique, and in fact reference various other purposes behind the book,” Batts wrote.

Batts said the ratio of the “borrowed to the new elements” in 60 Years is unnecessarily high. In addition to the main character, both works depend “upon similar and sometimes nearly identical supporting characters, settings, tone, and plot devices to create a narrative that largely mirrors that of Catcher,” Batts wrote.

Salinger, who is 90 years old and lives in New Hampshire, has not published any writing since 1965, his complaint said. He has shown no interest in publishing or authorizing a sequel to Catcher. His complaint referenced a 1980 interview, where he said there is “no more to Holden Caulfield. Read the book again. It’s all there. Holden Caulfield is only a frozen moment in time.”

Batts acknowledged it is unlikely that 60 Years would harm the market for Catcher itself, which has sold more than 35 million copies worldwide, but she found it “quite likely” that publishing 60 Years would harm the market for a Catcher sequel or other derivative works. She noted the right not to produce a sequel is consistent with the purposes of copyright law. “Just as licensing of derivatives is an important economic incentive to the creation of originals, so too will the right not to license derivatives sometimes act as an incentive to the creation of originals,” she wrote.

In response to the injunction, Edward H. Rosenthal, an attorney for Colting, called 60 Years “an important critical work,” in a news release from the New York law firm Frankfurt Kurnit Klein & Selz, where Rosenthal is a partner. “Because of the Court’s decision banning the book, members of the public are deprived of the chance to read the book and decide for themselves whether it adds to their understanding of Salinger and his work,” Rosenthal wrote.

In his appeal, attorneys for Colting wrote that 60 Years is “a complex and undeniably transformative comment on one of our nation’s most famous authors,” according to a July 24 report in The New York Times. They added, “Had this commentary and criticism been published as an essay, a dissertation or an academic article, there is no doubt that it never would have been enjoined.”

On August 2, the New York Times Co., the Associated Press, Gannett Co., and Tribune Co., filed an amicus brief with the 2nd Circuit on behalf of Colting, arguing the injunction represents an unconstituional prior restraint, and should be overruled.

“Prior restraint is our most unfavored remedy. Banning of speech, especially in a matter of general public interest is particularly heinous to our longstanding tradition of debate and commentary on matters factual or literary,” the brief stated. The publishers’ brief noted that prior restraints are illegal in situations involving obscenity, fair trial rights, and even most national security secrets, before concluding that “No prior restraint should have issued here.”